The Democratic Function of New Hampshire’s Periodic Constitutional Convention Referendum
The contemporary democratic function of New Hampshire’s periodic constitutional convention referendum is to provide a mechanism to bypass the legislature in proposing constitutional amendments. Incumbent legislators have an inherent conflict of interest with the people in proposing constitutional reforms that might reduce their own power. Classic examples include legislative redistricting, transparency, and voting systems, and legislators’ power in relation to competing branches of government, including the executive, judicial, and local branches.
New Hampshire got the periodic constitutional convention referendum in 1792—the first in the nation and now one of fourteen states with the institution. Eighteen states have another legislature bypass mechanism, the constitutional initiative, which is initiated by petition rather than mandatory referendum.
When the referendum question will next be on the ballot on Nov. 8, 2022, it will be the 36th time since 1799 that it has been on a ballot. Fifteen of those times New Hampshire voters approved calling a convention.
New Hampshire’s constitutional convention procedures are far from perfect. But everything about democracy, even constitutional democracy, is imperfect. Democratic imperfections should be reasons to seek improvement, not to abandon democracy. Dating back to 1776, New Hampshire has already made many improvements to its constitutional convention procedures.
New Hampshire should be proud of its constitutional convention legacy. That pride should include seeking to strengthen its institutional foundations so it can thrive in the 21st Century.
–J.H. Snider, April 19, 2022
J.H. Snider Op-eds
on the Upcoming Referendum
Snider, J.H., Why Vote for a Con-Con Nov. 8th? Top-Four Primary With Ranked-Choice Voting, New Hampshire Journal, Oct. 16, 2022.
Snider, J.H., Why is ‘con con’ on the Nov. 8 ballot?, Concord Monitor, Oct. 16, 2022.
Snider, J.H., Why is the constitutional convention question on the fall ballot?, New Hampshire Union Leader, May 6, 2022. Note that this is substantially the same op-ed as the one published below in the New Hampshire Journal.
Snider, J.H., Why Is a Constitutional Convention Question on NH Ballot This Fall?, New Hampshire Journal, April 28, 2022.
Summary Statistics
Note: For detailed information on New Hampshire’s constitutional convention history, click on the History menu above.
| Description | Number |
|---|---|
| Total constitutional conventions since 1776 | 17 |
| Total constitutional convention referendums since 1799 | 35 |
| Total calls approved by popular referendum since 1799 | 15* |
| Total calls approved by the legislature, not by referendum (1776, 1778, 1781) | 3 |
| Total calls mandated by the constitution (1791) | 1 |
| Total referendum calls constitutionally mandated but not placed on the ballot (1827) | 1 |
| Total amendments proposed by constitutional convention since 1791 | 197 |
| Total amendments proposed by convention that voters approved | 96 (49%) |
| Total amendments proposed by convention that voters rejected | 101 (51%) |
*In 1860 and 1864, the legislature ignored the calls.
The Three Popular Votes that Constitute The Core Constitutional Convention Process
To empower the Constituent Power (the people) over the Constituted Powers (the government created by a constitution), the people are given three votes:
The Constitutional Convention Process
As Specified In New Hampshire’s Constitution
Article 100: Alternate Methods of Proposing Amendments
(Source: New Hampshire Constitution, Accessed 3/30/2022.)
Amendments to this constitution may be proposed by the general court or by a constitutional convention selected as herein provided.
(a) The senate and house of representatives, voting separately, may propose amendments by a three fifths vote of the entire membership of each house at any session.
(b) The general court, by an affirmative vote of a majority of all members of both houses voting separately, may at any time submit the question “Shall there be a convention to amend or revise the constitution?” to the qualified voters of the state. If the question of holding a convention is not submitted to the people at some time during any period of ten years, it shall be submitted by the secretary of state at the general election in the tenth year following the last submission. If a majority of the qualified voters voting on the question of holding a convention approves it, delegates shall be chosen at the next regular general election, or at such earlier time as the legislature may provide, in the same manner and proportion as the representatives to the general court are chosen. The delegates so chosen shall convene at such time as the legislature may direct and may recess from time to time and make such rules for the conduct of their convention as they may determine.
(c) The constitutional convention may propose amendments by a three fifths vote of the entire membership of the convention.
Each constitutional amendment proposed by the general court or by a constitutional convention shall be submitted to the voters by written ballot at the next biennial November election and shall become a part of the Constitution only after approval by two thirds of the qualified voters present and voting on the subject in the towns, wards, and unincorporated places.
September 5, 1792. Question of calling a convention to be submitted every 7 years.
Amended 1964 twice changing submission of question on calling a convention to every 10 years rather than 7 and providing that the general court could propose amendments.
Amended 1980 twice incorporating provisions of repealed Art. 99 and requiring all proposals be submitted at the next biennial November election.
* First time in U.S. history and possibly world history where a convention of elected delegates separate from the legislature had met to propose written constitutional laws that were then submitted to popular vote.
** More than half the towns failed to send delegates to the convention.
*** Six of the amendments were on the 1948 ballot and five on on the 1950 ballot.
**** One amendment passed in 1956 was invalidated in 1957 by a New Hampshire court because the question was improperly worded. The convention reconvened in 1959 and reworded the question, and in 1960 the voters approved the reworded question.
Countdown Until Nov. 8, 2022
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New Hampshire Department of State Final Election Results
Vote |
Total |
% of
|
| Yes | 178,339 | 33.9% |
| No | 347,838 | 66.1% |
| Total Yes + No Votes | 526,177 | 100% |
| Total Ballots Cast* | 626,931 | |
| Total Registered Voters* | 869,863 |
* New Hampshire Secretary of State’s Office, ballots cast for Nov. 8, 2022 Election.
**New Hampshire Secretary of State’s Office, registered voters as of Aug. 30, 2022.
Post-1964, The Democratic Function of New Hampshire’s Periodic Constitutional Convention Referendum
“For certain purposes a constitutional convention would continue to be indispensable…..[I]n matters in which the legislature has a vested interest in protecting its prerogatives, it would not, by itself, be an effective instrument for constitutional change. It is simply not realistic, for example, to expect a legislature to cut down its size or to redistrict itself, as we have recommended.”
“We felt also in the Committee that it was very important that Constitutional Conventions be continued…. [I]n matters affecting the Legislature and its vested interest, it would be more appropriate for this body–for a Con Con—to consider that matter than it would be for the Legislature to consider passing on proposals affecting its own interest.”
“Some fear a constitutional convention because it exposes the entire structure of government to the threat of change. In theory, no holds are barred and every provision in the constitution is in jeopardy. Reality, however, is much more benign than theory. As our actual experience has demonstrated, the requirement that a proposal be approved by a three-fifths majority of a convention’s delegates before it can even be submitted to the voters has generally served to separate the wheat from the chaff.
More importantly, unless we fear democracy itself, why should we feel uncomfortable with a system in which the authority to fashion proposals to alter our basic charter is delegated to a deliberative body whose members are chosen by direct popular election? Who better to do the job? ….
The legislature is popularly elected; why can’t it adequately represent our interests? Suffice it to say that one of the reasons that we do not place the fate of the constitution exclusively in the hands of the Legislature is that it has a conflict of interest in this area. The Legislature’s own powers and structure are themselves defined by the constitution and any amendment which diminishes that body’s authority is not likely to be favored by our elected representatives. By the same token, the powers of tile other two branches of government are also defined by the constitution and the Legislature has more than a passing interest in skewing the balance of power in its own direction.”
Pre-1964, The Need For New Hampshire’s Constitution to Include A Legtislative Bypass Mechanism
From the mastermind of New Hampshire’s current, 1784, constitution, on why constitutional law should be proposed by a constitutional convention.
“We had a People of more Intelligence, Curiosity and Enterprize, who must be all consulted, and We must realize the Theories of the Wisest Writers and invite the People, to erect the whole Building with their own hands upon the broadest foundation. That this could be done only by Conventions of Representatives chosen by the People… for the People were the Source of all Authority and Original of all Power…. These were new, strange and terrible Doctrines, to the greatest Part of the Members, but not a very small Number heard them with apparent Pleasure, and none more than Mr. John Rutledge of South Carolina and Mr. John Sullivan of New Hampshire [bold added; Sullivan held statewide office in New Hampshire for most of the 1780s, including three years as governor.].”
On the tyranny of the legislature in a constitutional system without checks & balances.
“The love of Power is so alluring, we had almost said infatuating, that few have ever been able to resist its bewitching influence. Wherever power is lodged there is a constant propensity to enlarge its boundaries.”
In response to a proposed amendment granting the legislature the power to propose constitutional amendments.
“[My] objection to the gentleman’s proposition, and that is, that the legislature are to enlarge, or modify, possibly their own powers. And the Constitution, in my judgment, ought not to be altered until the people, sending representatives directly from themselves, see occasion to modify it.”
In response to a proposed amendment granting the legislature the power to propose constitutional amendments.
“A convention elected under the present method comes directly from the people and is uninfluenced by the partisan questions which often affect Legislatures. The delegates of the convention come here with a single purpose in mind, -the real benefit of the people. Changes in the Constitution should be kept clear of political entanglements and free from those influences that ordinarily affect a Legislature. It seems to me, that for the purpose of saving a few dollars this doubtful experiment should not be made.”
In response to a proposed amendment granting the legislature the power to propose constitutional amendments.
“Any amendment proposed by a Constitutional Convention relating to the same subject as an amendment proposed by the legislature, coincidently submitted to the qualified voters
for ratification, at the general election to be held in the year one thousand nine hundred and twenty, or at any subsequent election, shall, if approved, be deemed to supersede the amendment so proposed by the legislature.”
On the need for New Hampshire to have a statutory legislative bypass mechanism.
“We need[the initiative] not merely to repeal laws which are an injury to the state, but we need it to get bills which the legislature, session after session, refuses to pass.”
On the need for New Hampshire to have a statutory legislative bypass mechanism.
“The new method of governing, by direct legislation— the initiative and referendum— has received widespread approval in over half the area of the United States, because it has been found that a thorough-going corrupt practices act and other needed remedies could not be passed through legislatures elected by corrupt processes.”
On the contemporary function of the periodic constitutional convention referendum.
“The constitutional convention question] is required to be placed on the ballot every 10 years. The idea was that while the legislature may propose amendments at any time, there may be issues that the public wants but legislators balk at. A constitutional convention could consider such matters and propose amendments to the voters.”